Right-wing convinced Kagan will support gay marriage, for some reason

The National Organization practices some predictive mind-reading

Published May 10, 2010 10:30PM (EDT)

Supreme Court nominee Elena Kagan, last year: "There is no federal constitutional right to same-sex marriage."

Brian Brown, President of the National Organization for Marriage: "There is no right to gay marriage in our beloved Constitution."

Sounds like they're in perfect agreement, right? (Except for the fact that Brown talks about the Constitution like he wants to gay-marry it?)

But today NOM sent out a press release headlined, "A Vote For Kagan Is A Vote For Gay Marriage."

NOM's proof? The brief Kagan filed in support of the vile Defense of Marriage Act did not support NOM's favorite patently ridiculous justification for the denial of marriage rights to LGBT couples: "that [heterosexual] unions uniquely protect children by encouraging responsible procreation." I think even this conservative Supreme Court would find that risible as a "key legal defense."

So based on the fact that she defended a gay marriage ban before the Supreme Court and also the fact that she explicitly said there is no constitutional right to gay marriage (not that courts haven't found one, that there isn't one), NOM is positive that Kagan will vote to allow gay marriage. I wonder how they can be so sure? Do they think they know something about her that we don't?

I have no idea whether the rumors about Kagan's sexuality are true, which means for the moment I have to take the White House at their word that they aren't. But if her public statements indicate that she supports making gay marriage legal via the courts, that's news to this right-wing legal blogger. So I'm forced to assume NOM's opposition is based on something other than the public record.

By Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene

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Elena Kagan Gay Marriage Obama's Supreme Court Nomination Supreme Court War Room